TERMS OF SALE
1. Agreement. These Terms of Sale, together with the order hereby acknowledged (Order), constitute the entire agreement between Buyer (who is identified in the Order) and Seller (Thomas Lavin, Inc.) with respect to the merchandise sold. Provisions in the Order which are contrary to these Terms of Sale are rejected by Seller. Any documents which purport to modify these Terms of Sale must, to be effective, be signed by an officer of Seller. Neither the Order nor these Terms of Sale bind the manufacturer of the merchandise sold.
2. Cancellation and Changes. An order cannot be canceled after Seller’s issuance of the order acknowledgment. Should cancellation be necessary and such cancellation is agreed to by Seller, a cancellation fee equal to 50% of the order total price will apply to all orders for all standard order merchandise and a cancellation fee equal to 100% of the order total price will apply for all custom order merchandise. An order will only be modified or changed upon the acceptance by Seller of written instructions from the Buyer. Any changes/modifications in the specifications of the merchandise sold will be subject to the manufacturer’s acceptance and any additional charges incurred for any such changes/modifications will be the sole responsibility of Buyer.
3. Modification. Any modification of the Order must be in writing and must be acknowledged in writing by Seller. Modification of the Order may result in additional charges for which Buyer will be solely responsible.
4. Delays, Shortages and Unavailability. Seller is not responsible for delays, for shortages of labor or materials, or for variations of color from samples. Seller is not responsible for lead time, which may change without notice. Lead time does not commence until COM/COL is received and finish is specified. All colors, sizes, quantities and prices are subject to change and/or discontinuance without notice.
5. No Representation or Warranties. Buyer disclaims and excludes all warranties with respect to the merchandise sold, whether express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Buyer, in accepting this acknowledgment of the Order, agrees to the foregoing disclaimer and exclusion of warranties, and acknowledges that Seller has made no representations concerning the merchandise sold.
6. Payment. Payment for the merchandise sold is due upon Buyer’s receipt of a final invoice. In the event of a default in payment, Buyer shall be liable for all collection costs incurred by Seller, including, but not limited to, attorneys fees, collection agency fees and related disbursements. In the event payment is not made when due, Buyer shall pay a service charge on past due amounts of 1 ½ percent per month or the maximum percentage rate permitted by law. In the event that payment is not made within 90 days of date when due, Buyer shall have the right, but not the obligation, to cancel the Order and retain the merchandise sold and deposit paid as liquidated damages.
7. Delivery/Shipping. All sales are F.O.B. manufacturer. Shipment is at Buyer’s expense and risk. Buyer waives, as against Seller, all claims for damage to the merchandise sold.
8. Claims. All claims with respect to damaged merchandise sold shall be made in writing to the shipper immediately upon discovery. Claims for damage to merchandise sold do not relieve or defer the obligation of Buyer to pay for the merchandise sold according to the terms of this agreement.
9. Exclusive Remedy. Buyer’s exclusive remedy against Seller arising out of any breach of this agreement is limited to the repair or replacement of the merchandise sold, or, alternatively, at Seller’s election, a refund of the purchase price of such merchandise. Seller shall not be liable to Buyer for any direct, indirect, incidental, special, consequential or punitive damages resulting from any breach by Seller of this agreement.
10. Indemnity. Buyer shall indemnify and hold Seller harmless against all losses, including but not limited to, property damage, loss of profits or revenues, loss of use of property, personal or bodily injury or death, in any way arising from or related to the merchandise sold. Buyer’s indemnification obligation applies whether Buyer was negligent, whether Seller was negligent, whether any third party was negligent or whether Buyer, Seller or any third party were negligent in combination.
11. Arbitration. All disputes between Buyer and Seller shall be determined exclusively by binding arbitration in Los Angeles, California under the rules of the American Arbitration Association applicable to such disputes.
12. Attorneys Fees. The prevailing party in any arbitration or other proceedings related to or arising out of this agreement shall be entitled to recover reasonable attorney’s fees and costs.
13. Governing Law. This agreement shall be governed by the interned laws of the State of California, regardless of where this agreement is executed or is to be performed.
14. Disclaimer. It is the responsibility of the Buyer to provide cuttings or back-up to textile workrooms, showing correct fabric. Fabric manufacturers will only replace incorrectly shipped goods that are in pristine condition and meet their terms and conditions for returns. When fabric is cut or otherwise compromised, even though it may have been wrongly shipped, neither Seller nor the fabric manufacturer will be liable for replacement. It is IMPERATIVE that the workroom does not cut any fabrics until they have been verified by the Buyer.